Indiana Bankruptcies Up

Is news of more bankruptcy filings in Indiana any real surprise? Bankruptcy filings up in Indiana comes from The Indiana Lawyer:

"Bankruptcy cases in federal courts have increased more than 30 percent in the fiscal year ending in September as compared to the 2007 fiscal year. In Indiana, bankruptcy cases have increased more than 25 percent in the U.S. District Court's Northern and Southern districts."

I no longer represent debtors in bankruptcy court and my wife is wondering whether that is a good idea. I do not because of the burdens imposed by BAPCA (the bankruptcy law since 2005). That bankruptcies continue to rise in Indiana shows just how badly off is Indiana. See, the new bankruptcy law was to curtail Chapter 7 filings. Doug Masson has a fuller discussion of why they are increasing here.

I do want to mention that creditors need to get counsel that has both bankruptcy court and collection experience. I have that kind of experience but I limit my work to the Southern District of Indiana.

Collections: Good Outline of the Fair Debt Collection Practices Act

Thanks to ISBA Mutual Insurance Company for publishing Debt Be Not Proud. Yes, the article reads as if it is directed to lawyers (because it is), but I think it can still be read and understood and used by non-lawyers.

Increase in Federal Minimum Wage Goes to $6.55

Thanks to Labor Law Center Blog's Federal Minimum Wage Goes to $6.55 because I forgot there would be an increase this year.

"On July 24 2008, the federal minimum wage will increase by 70 cents from $5.85 per hour to $6.55 per hour. The federal wage affects every employer with annual revenue over $500,000 per year, and those who engage in interstate commerce."

This applies also to collections - the minimum wage for a garnishment becomes now $196.50.

Collections: Fraudulent Transfers, New Case from the Indiana Court of Appeals

The Indiana Court of Appeals held in Hoesman v. Sheffler (pdf) format that a debtor is not a necessary party to a fraudulent transfer suit (pages 8 -9). Hoesman involves a trustee converting money in a trust. Those thinking of a trust with a relative should read this case. Cases like Hoesman are why I recommend an institution instead of an individual as trustee.

The Court of Appeals also discusses the issue of getting value for an alleged fraudulent transfer (pages 10- 12) and the "badges of fraud" (pages 12 - 15). Reading the discussion at page 10 -12 about good faith purchasers, I am of the opinion that this case will bear directly on Indiana's assignment for benefit of creditors statute.

The opinion also discusses IC 30-4-3-22(c) and the priority of liens.

New Court of Appeals Case on Crime Victim's Statute, Mortgage Foreclosure and Fidicuiary Duty

And discovery sanctions and attorney fees and garnishment orders. At sixty-seven pages, I still have not fully digested Prime Mortgage USA, Inc. v. Nichols (PDF format) beyond recognizing that this looks like a bombshell of a case. The Court of Appeals describes the issues as follows:

Issues

1. Whether Nichols's claim under Indiana Code section 34-24-3-1 (the "Crime Victims Statute") is barred by the statute of limitations;

2. Whether the Defendants were entitled to a jury trial on the amount of damages under the Crime Victims Statute:

3. Whether the trial court abused its discretion in ordering default judgments as a sanction for discovery violations:

4. Whether the trial court's award of damages was proper and supported by the evidence;

5. Whether sufficient evidence existed to hold the Defendants liable under the Crime Victims Statute;

6. Whether the trial court's award of attorney's fees was improper:

7. Whether the trial court improperly determined that Nichols's unpaid compensation constituted "wages" under Indiana Code sections 22-2-5-1 and -2:

8. Whether Nichols's claims are barred by the doctrine of unclean hands: and

9. Whether the trial court's garnishment order was improper under either Indiana Code section 27-1-12-14(e) or Indiana Code section 27-I-I 2-17.1(1).

That list excludes one important issue and why I fully expect a petition to transfer to the Indiana Supreme Court is being contemplated by the appellant: "The trial court held a hearing on damages. and awarded roughly eight million dollars to Nichols."

I plan on breaking the case down by topic in separate posts rather than one big post. Stay tuned.

Collections: The Debtor's Options

You get sued for money owed. What do you do next?

Answering that question depends on a few things:

1. Is the suit filed in small claims or not?
2. Can you fight the suit?
   
3. Are you working?
4. If you are working, do you have a garnishable wage?
5. Have you filed bankruptcy?
6. Will the creditor accept payments?
7. Will you be able to make your payments?

Regardless of whether the case is small claims or not, you can fight the suit. The difference lies in how you fight. If the suit was not filed in small claims, you need to read my Civil Suits - What Happens After Getting A Summons.

If you do not fight the case or lose in court, the question becomes how do you pay the judgment? Read my Collections Law: Judgment Proof - What is it? and decide if the plaintiff can use the court to get payment out of you.

If the plaintiff can garnish your wages or attach property, you need to decide on whether to make payment arrangements or file bankruptcy. If you do not have an attorney at this point, you need to get one.

When I do collections, I am leery of payment arrangements and so is almost any other collection attorney. Why? You got into this spot because you did not pay your bill. What reason is there for thinking you can make these payments now?

Collections Law: Judgment Proof - What is it?

Judgment proof means no one can get a debt paid through legal process.

Forget about blood from stones. Someone is judgment proof when they lack a garnishable wage, and no non-exempt property. This category includes many who think of themselves as "stones".

Indiana's property exemption statute is IC 34-55-10-2. I admit that it is hard to execute or attachment non-exempt property. The chief reason being that the dollar amounts are set at fair market value and the amount of liens found on some types of property (such as mortgages). Getting to the value of the property requires an appraisal and IC 34-55-4 gives some solace to the debtors.

With property hard to get at, garnishing wages appeals as the easiest way to collect a judgment. Indiana's statute setting out how much of one's wages are exempt from garnishment is both long and long-winded, and I quote only part of it in the following:

IC 24-4.5-5-105: Limitation on garnishment and proceedings supplemental to execution; employer's fee
(1) For the purposes of IC 24-4.5-5-101 through IC 24-4.5-5-108:

(a) "disposable earnings" means that part of the earnings of an individual, including wages, commissions, income, rents, or profits remaining after the deduction from those earnings of amounts required by law to be withheld;
(b) "garnishment" means any legal or equitable proceedings through which the earnings of an individual are required to be withheld by a garnishee, by the individual debtor, or by any other person for the payment of a judgment; and
(c) "support withholding" means that part of the earnings that are withheld from an individual for child support in accordance with the laws of this state.

(2) Except as provided in subsection (8), the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment to enforce the payment of one (1) or more judgments against him may not exceed:

(a) twenty-five percent (25%) of his disposable earnings for that week; or
(b) the amount by which his disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage prescribed by 29 U.S.C. 206(a)(1) in effect at the time the earnings are payable;

whichever is less. In the case of earnings for a pay period other than a week, the earnings shall be computed upon a multiple of the federal minimum hourly wage equivalent to thirty (30) times the federal minimum hourly wage as prescribed in this section.

Many find themselves facing a garnishment because they do have a garnishable wage. The usual response is either: 1) that means my other bills will not get paid, or 2) I will file bankruptcy. As a collections attorney, I am not necessarily concerned with either scenario but only with getting money for my client.

The only truly judgment proof debtor (and yes, there could be exceptions here) receives Social Security benefits. See my post Garnishing Social Security Benefits about that subject.

Collections: Statute of Limitations, Again

The creditor continues trying to collect a debt that is fifteen years old. The law says the statute of limitations for a written contract is ten years and six years for an account. What gives?

The statute of limitations say when a creditor must start collecting a debt, not when it must be completed. Otherwise, the debtor can merely skip about and relieve themselves of their obligations.

Statute of limitations exist for getting the person with the injury to act rather than wait.

Statute Limitations Do Not Bar a Lawsuit, but Here is What Does

A statute setting the time limit for filing a lawsuit bars a claim after that date. That kind of statute is not a statute of limitations.

Attorneys call a statute of limitations an affirmative defense. Defendant has the job of pleading the defense and proving it. The plaintiff wins if defendant either does not plead or pleads but does not prove. (See Indiana Trial Rule 8(c)).

JOHN R. SAND & GRAVEL CO. v. UNITED STATES (html format) gives us the example of a statute creating a deadline for filing a lawsuit against the federal government. The following paragraphs from the United States' Supreme Court opinion contain the facts:

The Government initially asserted that petitioner's several claims were all untimely in light of the statute providing that "[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." 28 U. S. C. §2501. Later, however, the Government effectively conceded that certain claims were timely. See App. 37a-39a (Government's pretrial brief). The Government subsequently won on the merits. See 62 Fed. Cl. 556, 589 (2004).

Petitioner appealed the adverse judgment to the Court of Appeals for the Federal Circuit. See 457 F. 3d 1345, 1346 (2006). The Government's brief said nothing about the statute of limitations, but an amicus brief called the issue to the court's attention. See id., at 1352. The court considered itself obliged to address the limitations issue, and it held that the action was untimely. Id., at 1353-1360. We subsequently agreed to consider whether the Court of Appeals was right to ignore the Government's waiver and to decide the timeliness question. 550 U. S. ___ (2007).

The court cannot raise the issue of an affirmative defense but it can always raise the issue of having jurisdiction over a case. Justice Breyer explains the legal differences here:

Most statutes of limitations seek primarily to protect defendants against stale or unduly delayed claims. See, e.g., United States v. Kubrick, 444 U. S. 111, 117 (1979). Thus, the law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to rules of forfeiture and waiver. See Fed. Rules Civ. Proc. 8(c)(1), 12(b), 15(a); Day v. McDonough, 547 U. S. 198, 202 (2006); Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982). Such statutes also typically permit courts to toll the limitations period in light of special equitable considerations. See, e.g., Rotella v. Wood, 528 U. S. 549, 560-561 (2000); Zipes, supra, at 393; see also Cada v. Baxter Healthcare Corp., 920 F. 2d 446, 450-453 (CA7 1990).

Some statutes of limitations, however, seek not so much to protect a defendant's case-specific interest in timeliness as to achieve a broader system-related goal, such as facilitating the administration of claims, see, e.g., United States v. Brockamp, 519 U. S. 347, 352-353 (1997), limiting the scope of a governmental waiver of sovereign immunity, see, e.g., United States v. Dalm, 494 U. S. 596, 609-610 (1990), or promoting judicial efficiency, see, e.g., Bowles v. Russell, 551 U. S. ___ , ___-___ (2007) (slip op., at 7-8). The Court has often read the time limits of these statutes as more absolute, say as requiring a court to decide a timeliness question despite a waiver, or as forbidding a court to consider whether certain equitable considerations warrant extending a limitations period. See, e.g., ibid.; see also Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). As convenient shorthand, the Court has sometimes referred to the time limits in such statutes as "jurisdictional." See, e.g., Bowles, supra, at ___ (slip op., at 5).

You can find most of Indiana's statute of limitations by following this link here.

Take a look at Court Imposes Strict Deadline in Lawsuit, if you want to read more about JOHN R. SAND & GRAVEL CO. v. UNITED STATES.

Civil Suits and Collections

Between a telephone call last evening to reading After losing lawsuit, practice may dissolve this morning, I decided a quick post was needed.

After graduating from last school, I worked for a local collections attorney for about a year. I had no idea that a lawyer could have a practice just collecting money. Law school taught us to know the elements of case, write an appellate brief, and argue a case. Among the many things not taught us was that a plaintiff (the person suing) in a contracts or torts case wants money.

For the non-lawyers reading this, the law requires a showing of injury that can be quantified into dollars. We call that damages. There are other elements, too. In a contracts case, those other elements are duty and breach.

I break collections into two categories. First, Those cases having a fight and the question will be if we when where does the money come from? One can win the battles but lose the war. History is full of examples of this: Germany in World War I, Germany in Word War II until 1941, the American Revolution and an ancient Greek general who gave his name to Pyrrhic victory. The case reported by the Indianapolis Star sounds like one of these:

A Marion County jury awarded Pollack $480,853 in damages after a 21/2-day trial. With interest dating to 1996, when Pollack left the practice, the claim could top $1 million.

An attorney for the 17- employee practice, based on the Northeastside, has proposed to creditors that the practice close its doors and liquidate its assets, which it estimates are worth about $300,000, according to a letter Pollack received from his attorney.

Under the plan, Pollack would collect just $219,000 of his judgment paid over 10 years. Pollack, as a result of his civil damage award, is the practice's largest creditor.

An attorney for Cardiac & Vascular, Michael McCrory, said, "I am not prepared to make a comment" on the likelihood the practice will close and liquidate its assets. The practice was closed for business Monday and Tuesday, and its administrator, Tim Hare, did not return a call seeking comment.

My experience doing collections and bankruptcy work makes me ask about assets and collecting the judgment. I still get people offering me these great cases where I will make a lot of money except that the cases disappear so quickly when I start asking how we will collect that money.

The other type of collection cases pose no great issues of liability (the opposing party's) or damages, but only on how to get the money. I spent a good deal of time the other night explaining how these cases work to a potential client: mostly likely we will get a default judgment and then I will spend a very long time trying to get the money as the defendant had a history of switching jobs. I suspect she operated under the illusion of many that all I had to was get a judgment and the money would appear on her doorstep. Because of people quitting jobs as soon as a garnishment order arrives, a collections practice requires volume for success.

Collecting debts - what not to do

From today's Muncie Star-Press:

BREAK-IN: A Muncie man was arrested Saturday afternoon, accused of dealing several thousand dollars worth of property from acquaintances.

The suspect, Stephen E. Nipper Jr., 27, 2611 S. Tacoma Drive, was preliminarily charged with burglary, a class B felony, after police found him trying to sell property stolen from a home at 307 E. Harvard Ave.

The victims said Nipper had dropped his son off at their residence and apparently came back and took property that included a shotgun, gold and diamond jewelry and cameras, police officer Melissa Pease reported.

Nipper claimed the victims owed him money for work. He remains in jail without bond.

Folks, small claims does not cost that much and if you are owed more than $3,000.00 then a lawyer is still cheaper than sitting in jail. Think about it.

Collections - calculating exempt wages

Doug Masson over at Masson's Blog has a post titled Collection Law Math. Check it out if you are debtor being sued or an attorney who handles collection cases. Masson explains the point at which one's wages are garnishable and does it quite intelligibly. When I was doing consumer bankruptcy work, I had the hardest time explaining to some potential clients that they were judgment proof. Judgment proof meaning that they had no assets for attachment and insufficient wages for garnishment.

Anybody getting a contempt citation for not paying a bill?

Using contempt to collect a debt is not allowed under Indiana law. Contempt permits imprisonment. Indiana forbid imprisonment for debt in 1851.

Contempt requires the intentional and willful disobedience of a court order. Therefore, contempt and debt collection can only intersect after there is a judgment on the debt.

The process of collecting the judgment is either by way of the judgment debtor agreeing to their debt or initiating involuntary methods such as proceeding supplemental to execution, garnishment, attachment and/or execution.

A debtor can agree to make payments on a judgment and the court can incorporate that agreement into an Order. I know of cases where the trial judge has made an Order on the debtor's promise to pay and the attorney then used contempt when the debtor failed in amking payments.

This differs from the situation where the debtor ordered into court for a hearing does not appear. Contempt properly exists for these situations. The debtor faces imprisonment not for the debt but for disobeying the court's Order to appear.

In my opinion, the collection attorney using contempt for collecting a debt violates the federal Fair Debt Collections Practices Act (the FDCPA). The FDCPA forbids the use of illegal means collecting debts.

Using contempt for debt collection has the collections violating Art. I, §22. That the debtor only suffered the threat of imprisonment is not a defense for the collection attorney. Case law shows that the threat of illegal activities suffices for a successful FDCPA action. All the collection attorney does by using contempt for collecting a debt is create a credible suit against one's self under the FDCPA.

One final point, using contempt for debt collection serves no truly useful purpose. Many methods exist for the competent collections attorney to collect a debt and contempt lacks any utility comparable to garnishment or attachment. a competent collections attorney also knows what debts can be collected or not. Striking terror in the heart of debtors seems the only use for contempt which is not useful when the purpose of a collections attorney is to get the money.

Collecting bills - Statute of Limitations?

If some recent inquires indicate anything, collection agencies must be dusting off old accounts. A spate of calls ask if collection agencies can collect a bill 6 - 7 years old. The only answer is: "Yes, they can."

Statute of limitations have nothing to do with bill collectors. They have everything to with the courts and law suits. Even then, a statute of limitation does not bar a law suits. Barring a law suit means that the law suit cannot be filed.

A statute of limitation acts as an affirmative defense. An affirmative defense is a defense that has to be made when a suit is filed. Do not raise the defense, then you lose it.

A bill collector calling on the telephone or sending a dunning letter is not covered by any statute of limitations statute. People can make the choice not to pay an old bill and hope that they get it right when suit is filed - assuming they do not hire an attorney.

Nor does collecting an old debt violate the Fair Debt Collection Practices Act. The FDCPA says that the debt collector cannot attempt to collect a debt the collector knows is barred by the law. Since Indiana law does not bar collecting a debt that might have a statute of limitations defense, the debt collector is not attempting to collect a debt forbidden by the law.

A Few Wise Words of Advice for Debtors

Doug Masson practices law over in Lafayette, Indiana. He also runs Masson's Blog. From time to time he mentions things relating to his collections practice. I did not see this post from the 27th, but I did today and thought it was great. My practice no longer includes as much consumer collections as it once did, but I handled things pretty as Mr. Masson lays out below. Most collections attorneys I know handle their cases the same way. The following describes how a debtor can screw themselves with a collections attorney and I suggest any debtor having a very long think after reading this:

But some people just don’t get it. They are obstinate. They aren’t going to pay their debt, and they don’t care what a court has to say about it. Nothing gets my hackles up faster than someone telling me what they will or won’t pay. Tell me sweet lies about how you’re really trying, you’re really sorry, but you just got into a jam and really, you’re going to pay next month. But make the lies plausible, make an effort to pay, and above all, do not tell me that you’re not going to pay, and I can’t make you. Because if you do that, I’m going to bring as much of the heavy handed mechanisms of the law to bear as I can to collect the debt. And when I suspend your license for damages from your uninsured auto accident, I’m not going to be moved by your lamentations that you can’t get to work without a license. I’m not going to care that garnishing 25% of your take home pay doesn’t allow you to pay your other bills. If you got to that point, it’s because you didn’t pay the original creditor, you didn’t work out a plan with the collection agency, you didn’t work out a payment plan when I sent you an initial demand, you didn’t work out a payment plan when I filed a lawsuit, you didn’t work out a payment plan when I got a judgment against you, and you didn’t work out a payment plan when I filed the first proceeding supplemental.

Garnishing Social Security Benefits

I find it odd that many people I talk to receiving Social Security benefits do not know that their money cannot be be taken by a creditor. The governing law bars the assignment or attachment of Title II benefits through execution, levy, attachment, garnishment or any other legal process unless another federal law specifically allows a creditor to take the Social Security money. Taxes and student loans can be offset against Social Security benefits.

For run of the mill debts, Social Security benefits cannot be garnished or attached. That includes bank accounts where the person deposits Social Security benefits. This from the Department of Health Human Services describes the law:

The U.S. Supreme Court has held that Social Security funds deposited into a bank account "retained the quality of 145moneys’ within the purview of section 407[.]" Philpott v. Essex County Welfare Bd., 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973). Courts have also held that the funds remain exempt from legal process even if they are commingled in a bank account with other funds, so long as they are reasonably traceable to Social Security. NCNB Fin. Servs. V. Shumate, 829 F.Supp. 178 (W.D. Va. 1993), affd. 45 F.3d 427, cert. Denied 115 S.Ct. 2616. Since the prohibition on the attachment of SSI payments is based on the same statutory provisions as apply to Social Security, i.e. section 207 of the Act (42 U.S.C. 407), the reasoning in these cases would apply equally to SSI payments.

A checklist for good collection cases

I give the following checklist to my business clients who need collections work. A good collections case means the client having this information before they send me the file. Too often a debtor is not just a debtor but a true deadbeat. A true deadbeat has no qualms about skipping out on a job or a residence to avoid paying their debts.

1. The person's full name.
2. Person's Social Security Number and driver's license number.
3. Person's address.
4. Person's birth date.
5. Where person was last employed.
6. Copies of contracts and/or invoices unpaid.

Quite a commonsensical list really and all information that every business should have on the people it deals with.

Collections - Why not to do it yourself

I meant to write about this a week or more ago. While waiting in our County Court One, I watched as the judge dispatched the pro se collection cases. One plaintiff has been in business for many years and I was surprised to see him without an attorney. He proceeded to ask the judge some general questions about the procedures of collecting his judgment.

Too often I see people like this fellow or I get telephone calls from people like him. They have a judgment and the judgment has gone unpaid. Some people operate under the belief that people will automatically pay a judgment. Some people think that the court will insure that the judgment gets paid. They all share one trait - great annoyance at not getting paid. They find the small claims procedure so simple and cheap. Some burst with pride that they did not need to pay for an attorney. They burst with the exact opposite of pride when I explain that they have to work to get their money. That the courts exist to pass judgment but enforcing those judgments is the plaintiff's job.

Collections cases never involve the spectacular trial - generally these are the cases where liability is admitted by the defendant. The real work starts with getting the judgment. The plaintiff needs to find the defendant's assets and then get control of those assets to pay the judgment. All too often, the plaintiff must also find the defendant.

Not all of the defendant's assets are created equal. Exemptions protect the debtor from collections. Indiana law exempts assets from taking by a plaintiff by type of asset and amount of its worth. Indiana and federal law also exempts a certain amount of wages from garnishment.

Wage garnishment is easiest collection method. Easiest if the debtor has a job or does not skip from job to job or gets paid enough to garnish or is not paid in cash. Garnishment requires a lot of paperwork. Assume you know where the debtor works, you need to file a Motion Proceeding Supplemental to Execution naming both the debtor and the employer, a Summons to Garnishee Defendant, and enough copies for both the debtor and the employer. Some counties require an Order to Appear for the debtor. Then you have to show up for a hearing. Now everything could go right at this point - the employer still employs the debtor and the debtor has a garnishable wage. What if the debtor does not appear and is no longer employed? More paperwork, of course. An Order to Show Cause in most counties but not all. That means you need to get some idea of what is the local practice. Another hearing, too. If the debtor does not appear for the Show Cause hearing? More paperwork requesting a body attachment. A body attachment is an Order from the court to the local sheriff to have the debtor arrested for failing to appear as ordered by the court. However, do not think that the sheriff will go hunt down your debtor. They do not do this.

By this time, you have enriched your local Kinko's and spent more than you probably ever wanted to in your local small claims court without seeing a dime. You will need to figure out how much of a benefit this will be to you.

A collections attorney has a large enough practice to subsidize the slow paying cases. By that I mean, there are enough paying cases to justify the attorney to be in the courthouse to work the slow paying or no paying cases.

The fellow I mentioned at the beginning now must figure out the paperwork that he needs. He will have to do this on his own since the court cannot help him fill it out. Hopefully, the will tell him if he has done anything wrong. He needs to get the copies made and delivered to the court. If he does not have enough, he will have to go back and make more copies. Then he will need to make time to appear at more hearings. All this may detract from his current business.

If you are thinking of collecting your own debts, I suggest you think seriously about the true costs to you. I am going to describe what makes a good collections case in another post.